On expanding the death penalty, budgets, and unfunded mandates

State Sen. Joan Huffman has a bill up (SB 377) tomorrow in the Senate Criminal Justice Committee that would expand the option for prosecutors to pursue capital punishment in cases where a child under ten years old is murdered. Presently prosecutors can seek the death penalty when the victim is under six years old, as well as under a litany of other circumstances. I'm sure testimony on behalf of the bill will be emotional, and there's a legitimate debate to be had about what is the "right" punishment for people who kill children: Whether death or life imprisonment, for example, best exemplifies "justice."

But I want to set aside those hot-button questions for the time being and focus instead on the predictable, politically motivated lie in the fiscal note that "No significant fiscal implication to the State is anticipated" from this bill. Except everyone knows the cost of capital punishment isn't "insignificant" at all, especially when the death penalty is sought and especially considering the cost of appeals, which like it or not are a reality that even the Roberts court is not likely to reverse.

Consider: Remarkably, Illinois now estimates that their abolition of the death penalty earlier this month will save the state $4.7 million in annual appellate costs, letting them fire 37 employees at the state appellate defender (Texas usually pays contract fees to outside counsel instead of having a public defender do the job). And Illinois only had 15 people on death row! Texas at the moment has 314. God knows what a comparable cost figure would be here!

According to the Criminal Justice Impact Statement, "In fiscal year 2010, 13 offenders were admitted to the Texas Department of Criminal Justice for capital murder of a child under six years of age." If people are convicted for killing children age 6-9 at the same rate as from 0-5, there will be ten additional capital murder convictions each year, give or take, as a result of this bill. Those killers would have been convicted of murder, anyway, so the main effect of the enhancements is to invite years of costly, avoidable federal appeals.

Even the LBB fiscal note acknowledged SB 377 would place an additional burden on local taxpayers: "the fiscal impact to a county in which an indigent defendant is tried could be substantial.  According to the Office of Court Administration, the minimum cost of such a case may be as low as $100,000 but it could exceed $500,000.  This could be a significant cost for smaller counties." There are also hidden, additional costs for the state, for crime labs, and for all sorts of ancillary agencies that support the process. 

Like all enhancements that aren't accounted for with an accompanying revenue stream or a reduction in other penalties, this bill amounts to an unfunded mandate, generating more of the most expensive type of criminal cases with little evidence the law will deter. Emotional arguments aside, LBB's failure to assign fiscal notes to marginal enhancements like SB 377 allows the Legislature to avoid important debates about how will the state pay for the cost of its git-tuff policies.